[Cite as State v. Hamrick,

.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P. J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : Case No. 2011CA00041 RYAN LEE HAMRICK : : : Defendant-Appellant : OPINION NUNC PRO TUNC PRINTER ERROR PARAGRAPHS 8 & 11

CHARACTER OF PROCEEDING: Appeal from the Stark County Common Pleas Court Case No. 2009CR2044

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: March 19, 2012

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

KATHLEEN O. TATARSKY ANTHONY T. KAPLANIS Stark County Assistant Prosecutor 701 Courtyard Center 110 Central Plaza, South-Suite 510 116 Cleveland Ave. NW Canton, Ohio 44702 Canton, Ohio 44702 [Cite as State v. Hamrick,

.]

Delaney, J.

{¶1} On December 31, 2009, the Stark County Grand Jury indicted Defendant-

appellant Ryan Hamrick on one count of murder [R.C. 2903.02(A)] with a firearm

specification, [R.C. 2941.145]. Said charges arose from the death of Demeris A.

Tillman, 30, a resident of East Cleveland, Ohio.

{¶2} Appellant pled not guilty and exercised his right to a jury trial, which

commenced on January 19, 2011.

{¶3} At trial, most of the State’s physical evidence was undisputed by

appellant. On November 19, 2009, Tillman’s body was found in a creek beneath a

bridge on Moore Avenue, just south of Sherrick Road, in Canton Township, by a

township employee inspecting a previous dam removal project. The Stark County

Coroner determined Tillman’s death was caused by multiple gunshot wounds to the

head, trunk and arm.

{¶4} Tillman was killed with a ten millimeter handgun, an uncommon weapon.

Five shell casings were found at the scene along with Tillman’s cell phone. The cell

phone revealed text messages and calls between Tillman and a Jennifer McPherson.

The police subsequently located McPherson in West Virginia and questioned her. She

implicated appellant, also a resident of West Virginia, as the shooter. Appellant was

arrested and initially denied knowledge of or involvement in the death of Tillman.

Appellant subsequently admitted to shooting Tillman during an incident that occurred on

November 15, 2009. McPherson also was present at the time. However, appellant and

McPherson offered divergent versions of the events leading to Tillman’s death. Stark County, Case No. 2011CA00041 3

McPherson’s Version

{¶5} McPherson testified at trial that she knew Tillman through his cousin Jules

Covington (also known as Boony), who lived in West Virginia. She had gone with

Boony to visit family in Cleveland and met Tillman there. Tillman later traveled to West

Virginia and stayed at McPherson’s apartment. McPherson subsequently facilitated

drug deals between Tillman and appellant in West Virginia.

{¶6} On November 14, 2009, appellant and McPherson drove to Cleveland and

eventually picked up Tillman the next day. In Cleveland, Tillman obtained drugs for

appellant and he drove back to West Virginia with Appellant and McPherson. Tillman

(also known as Pork) was large of stature and sat in the front passenger seat while

Appellant drove his father’s red Mustang. McPherson sat in the back seat.

{¶7} McPherson testified they stopped at a Walmart in Akron, where “Chore

Boy” cleaner and an arrow were purchased to smoke crack cocaine. Store surveillance

cameras captured the red Mustang in the parking lot and appellant and Tillman together

in Walmart.

{¶8} McPherson stated appellant smoked crack in the car prior to leaving the

parking lot. They proceeded toward Canton via Interstate 77. McPherson stated

appellant got off the highway and drove to a back road and made her and Tillman get

out of the car. Appellant dropped them off at a bridge and told them they couldn’t go

with him. He drove away but McPherson did not know where he went once he drove

from sight. She and Tillman conversed about Christmas shopping and within a minute

or two a gunshot rang out. Tillman told her not to get scared because he knew people Stark County, Case No. 2011CA00041 4

in the area where they could go. Appellant drove back and stopped the car.

McPherson testified she reached for the passenger door to get in but it was locked.

Appellant exited the vehicle and shot Tillman two times. Tillman fell to the ground while

holding on to McPherson’s shirt and told her to run. Appellant came around the car. He

proceeded to again shoot Tillman while McPherson ran away.

{¶9} McPherson testified that appellant then drove after her. He told her to get

in the car or he would shoot her. McPherson got back in the car. The two returned to

West Virginia. McPherson stated that Tillman did not have a weapon or threaten her

with harm at any time.

Hamrick’s Version

{¶10} Appellant testified on direct examination that he meet Tillman through a

friend in West Virginia. Appellant had driven a couple times to Cleveland to pick up or

drop off Tillman. On November 14, 2009, he and McPherson drove to pick up Tillman in

Cleveland, arriving about 1:00 a.m. The two slept in the car and then picked Tillman up

around noon. Drugs were obtained from Tillman’s uncle at a gas station. The group

then started back to West Virginia. Appellant admitted to stopping at Walmart to get

Chore Boy and the arrow. Appellant said it was Tillman’s idea to stop in Canton to

make another drug transaction. Appellant testified that Tillman told appellant to drop

him and McPherson off and then go meet two men in a dark blue Malibu that would be

parked up the street. Appellant was to give them some drugs and bring money back to

Tillman.

{¶11} Appellant drove up the street. He stated he saw the vehicle parked on the

side of the road. He approached the vehicle with drugs in hand but two men got out of Stark County, Case No. 2011CA00041 5

the vehicle and one man held a gun to his head. Appellant stated he tussled with the

man. The man dropped the gun and appellant dropped the drugs. Appellant got back to

his vehicle but the man shot at him. He drove away and went back to pick up

McPherson because he felt she was his responsibility.

{¶12} Appellant testified he felt terrified and set up by Tillman. He stated that

Tillman looked surprised and shocked to see him come back. He got out of the car and

ordered McPherson back in the car. He stated he pulled his weapon out because

Tillman “just kept coming at me”. He felt he had nowhere to go and feared for his life,

so he shot Tillman, a much larger man than Appellant. Appellant stated he had seen

Appellant with a gun before, and on one previous occasion had thought that Tillman

was going to rob him. Appellant testified that he was very angry that Tillman had put

him in that position.

{¶13} In regards to McPherson, Appellant testified that he pulled up, she started

walking to the vehicle, she wasn’t running at the time and she did not seem frightened.

She got in the car and they returned to West Virginia without saying anything.

{¶14} On cross-examination, Appellant admitted to repeatedly shooting Tillman.

He stated he took the loaded weapon with him on the trip. He admitted he originally lied

to the police about knowing Tillman, his drug usage and stopping at Walmart. Appellant

also admitted that his brother lives on Sherrick Road. Appellant stated he did not see

Tillman with a weapon that day, nor did Tillman verbally threaten him. He also admitted

to later throwing the murder weapon into a river. Stark County, Case No. 2011CA00041 6

{¶15} When questioned specifically about McPherson, appellant stated she

didn’t appear to be in any immediate danger when he arrived back and that Tillman had

not hurt or threatened her.

{¶16} The jury found appellant guilty as charged. By entry filed February 15,

2011, the trial court sentenced Appellant to life imprisonment (with parole eligibility only

after serving fifteen years) on the charge of murder, and three years consecutive on the

firearm specification

{¶17} Appellant filed an appeal and this matter is now before this Court for

consideration.

{¶18} Appellant raises three assignments of error:

{¶19} “I. THE TRIAL COURT ERRED WHEN IT OVERRULED THE

DEFENDANT’S REQUEST TO CHARGE THE JURY ON THE LAW OF THE DEFENSE

OF ANOTHER AS IT PERTAINED TO THE DEFENSE OF JENNIFER MCPHERSON.

{¶20} “II. THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT’S

REQUEST TO CHARGE THE JURY ON THE LESSER OFFENSE OF VOLUNTARY

MANSLAUGHTER.

{¶21} “III. THE TRIAL COURT’S FINDING OF GUILTY OF MURDER WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT

SUPPORTED BY SUFFICIENT EVIDENCE.

I.

{¶22} Under his first assignment of error, appellant argues the trial court erred in

failing to give a jury instruction for defense of others. The trial court did give a jury

instruction for self-defense over the state’s objection. However, appellant also Stark County, Case No. 2011CA00041 7

requested a defense of others instruction. Appellant contends that sufficient evidence

was established that he was defending McPherson when he shot Tillman, such that an

instruction on the defense of others should have been given to the jury. We disagree.

{¶23} The standard of review for failure to give a requested jury instruction is

abuse of discretion. State v. Simmers, 5th Dist. No. 2009 AP 04 0017,

,

¶ 26. It is well-established that the trial court will not instruct the jury where there is no

evidence to support an issue. Id. at ¶ 25, citations omitted. “In reviewing the record to

ascertain the presence of sufficient evidence to support the giving of an instruction, an

appellate court should determine whether the record contains evidence from which

reasonable minds might reach the conclusion sought by the instruction.” Id.

{¶24} Defense of others is a variation of self-defense. State v. Moss, 10th Dist.

No. 05AP-610,

. One who claims the lawful right to act in defense of

another must meet the criteria for the affirmative defense of self-defense.

In other

words, a defendant is legally justified in using force only where the person he is aiding

would have been justified in using force to defend themselves.

{¶25} Thus, for appellant to be entitled to an instruction on the defense of others

he must show: (1) that McPherson was not at fault in creating the situation giving rise to

the affray; (2) that she had a bona fide belief that she was in imminent danger of death

or great bodily harm and that her only means of escape from such danger was in the

use of force; and (3) that she did not violate any duty to retreat or avoid the danger.

State v. Robbins,

,

(1979), paragraph two of the

syllabus. Stark County, Case No. 2011CA00041 8

{¶26} The trial court did not allow the instruction because “there are at least two

places in the * * * testimony of [Appellant] that Jennifer did not appear in any immediate

danger and it did not appear as though she was in * * * here was any problem.” T. at

846.

{¶27} Based upon our independent review of the record, we find there was not

sufficient evidence to warrant a defense of another instruction. Because appellant

stands in the shoes of McPherson, appellant could act with no more force than

McPherson would have been justified in using defend herself against assault by Tillman.

Here, neither McPherson’s or appellant’s testimony established that there was a bona

fide belief that McPherson was in imminent danger of death or great bodily harm at the

hands of Tillman and that the only means of escape was the use of force. Both

individuals testified that Tillman did not have a weapon and did not threaten McPherson.

Therefore, we find reasonable minds could not reach the conclusion sought by the

instruction and the trial court correctly refused to give the instruction.

{¶28} Accordingly, the first assignment of error is overruled.

II.

{¶29} In the second assignment of error, appellant claims the trial court erred in

refusing to instruct the jury on the lesser offense of voluntary manslaughter.

{¶30} Voluntary manslaughter is defined in R.C. 2903.03(A):

{¶31} “No person, while under the influence of sudden passion or in a sudden fit

of rage, either of which is brought on by serious provocation occasioned by the victim

that is reasonably sufficient to incite the person into using deadly force, shall knowingly

cause the death of another[.]” Stark County, Case No. 2011CA00041 9

{¶32} Even though voluntary manslaughter is not a lesser-included offense of

murder, the Ohio Supreme Court instructs that the test for whether a judge should give

a jury instruction on voluntary manslaughter when a defendant is charged with murder is

the same test to be applied as when an instruction on a lesser-included offense is

sought. State v. Shane,

,

(1992), citing State v.

Tyler,

,

(1990).

{¶33} A defendant charged with murder is entitled to an instruction on voluntary

manslaughter when the evidence presented at trial would reasonably support both an

acquittal on the charged crime of murder and a conviction for voluntary manslaughter.

“We hold that words alone will not constitute reasonably sufficient provocation to

incite the use of deadly force in most situations. Rather, in each case, the trial judge

must determine whether evidence of reasonably sufficient provocation occasioned by

the victim has been presented to warrant a voluntary manslaughter instruction. The trial

judge is required to decide this issue as a matter of law, in view of the specific facts of

the individual case. The trial judge should evaluate the evidence in the light most

favorable to the defendant, without weighing the persuasiveness of the evidence.” Id. at

637, citing State v. Wilkins,

,

(1980).

{¶34} In Shane, the Ohio Supreme Court re-emphasized that to be reasonably

sufficient provocation; the provocation must be occasioned by the victim and to be

reasonably sufficient, must be serious. Id. at 637-638. (Emphasis in original).

{¶35} From the evidence presented at trial, it would appear that the anger built

up in Appellant’s mind was caused by the attempt on his life during the sour drug deal,

which he believed to be set up by Tillman. There is no evidence that Tillman actually Stark County, Case No. 2011CA00041 10

provoked appellant into a sudden rage. Although appellant testified that Tillman came at

him aggressively, we agree with the trial court’s conclusion that this was insufficient

serious provocation to cause sudden passion or rage. We find the trial court did not err

in refusing appellant’s requested instruction on voluntary manslaughter.

{¶36} The second assignment of error is overruled.

III.

{¶37} In the final assignment of error, appellant argues the evidence was

insufficient to support the conviction for murder, and that the judgment is against the

manifest weight of the evidence.

{¶38} An appellate court’s function when reviewing the sufficiency of the

evidence is to determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt. State v. Jenks,

,

(1991), paragraph two of the syllabus.

{¶39} In determining whether a verdict is against the manifest weight of the

evidence, the appellate court acts a thirteenth juror and “in reviewing the entire record,

weighs the evidence and all reasonable inferences, considers the credibility of

witnesses, and determines whether in resolving conflicts in evidence the jury ‘clearly

lost its way and created such a manifest miscarriage of justice that the conviction must

be reversed and a new trial ordered.” State v. Thompkins,

,

,

.

{¶40} Murder is defined under R.C. 2903.02(A) as the purposeful killing of

another. Stark County, Case No. 2011CA00041 11

{¶41} The evidence was undisputed that Tillman died from multiple gunshot

wounds inflicted by appellant. Appellant contends on appeal that McPherson’s

testimony was untrustworthy due to several inconsistencies in her testimony, that she

was more acquainted with Tillman and had a motive to lie because Tillman’s family had

threatened her if they found out she had anything to do with Tillman’s death. Appellant

argues he was simply a drug user who had no criminal history. Appellant was enraged

that Tillman would set him up and feared for his and McPherson’s life so he shot

Tillman.

{¶42} With respect to appellant’s sufficiency of the evidence challenge, we find

in reviewing the record in a light most favorable to the state that there was sufficient

evidence for the jury to conclude that the essential elements of murder had been proven

beyond a reasonable doubt.

{¶43} Appellant’s argument that his conviction for murder was against the

manifest weight of the evidence relies mainly on attacking the credibility of McPherson.

Although this Court sits a ‘thirteenth juror’ when considering a manifest weight

challenge, it must give deference to the jury’s determination of the witnesses’ credibility.

Although McPherson’s testimony did contain some inconsistencies with prior statements

to police and she appeared to have a closer relationship to Tillman, the jury could

consider these factors in evaluating her credibility. We cannot find that the jury clearly

lost its way in believing McPherson’s testimony over appellant’s version of events.

{¶44} Accordingly, appellant’s third assignment of error is overruled. Stark County, Case No. 2011CA00041 12

{¶45} For the foregoing reasons, all of appellant’s assignments of error are

overruled, and the judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J.

Gwin, P.J. and

Farmer, J. concur.

HON. PATRICIA A. DELANEY

HON. W. SCOTT GWIN

HON. SHEILA G. FARMER [Cite as State v. Hamrick,

.]

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : RYAN LEE HAMRICK : : Defendant-Appellant : Case No. 2011CA00041 :

For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.

_________________________________ HON. PATRICIA A. DELANEY

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. SHEILA G. FARMER